Friday, December 6, 2013

Obama misleads us on NSA surveillance/ NY Times, NBC

From NBC  we learn Obama is going to give Americans more "confidence" in the NSA.  "I'll be proposing some self-restraint on the NSA and initiating some reforms that can give people some more confidence." But lack of confidence is not the problem.  Setting up a straw man to knock down "is an intentional misrepresentation of an opponent's position, often used in debates with unsophisticated audiences to make it appear that the opponent's arguments are more easily defeated than they are." Mr. President, is this spin-doctoring the best you can do to put out the NSA brushfires? 
"I want everybody to be clear.  The people at the NSA, generally, are looking out for the safety of the American people.  They are not interested in reading your emails.  They're not interested in reading your text messages," he added later. "And we've got a big system of checks and balances, including the courts and Congress, who have the capacity to prevent that from happening."
No, Obama did not say this last year, last spring, or even last month.  He said it yesterday during an interview with Chris Matthews.  (He did make similar statements before the Snowden revelations were published.)  And Obama's pablum did not stop there:
"Outside of our borders, the NSA's more aggressive. It's not constrained by laws. And part of what we're trying to do over the next month or so is having done an independent review and brought a whole bunch of folks, civil libertarians and-- lawyers and others to examine what's being done."
The Washington Post notes that "Obama has asserted, for instance, that the NSA’s collection of virtually all Americans’ phone records is lawful." Really?

*  It seems whenever there is a major embarrassing, ongoing issue for the executive branch, it calls for an "independent" review; but by choosing all the members of the review board, the review is never independent and its conclusions never in question.

*  We have NO checks and balances when the executive branch of government, which controls NSA, CIA and all other intelligence agencies, is performing total electronic surveillance on every member of the judiciary, every member of Congress, every elected and unelected official in the United States, not to mention most overseas.  If anyone can argue this point, please do so.  It's critical.

*  Even if the ballot boxes were/are honest, how can we get free and fair elections when it costs so much to run that candidates must provide quid pro quo's to their campaign donors to get the needed cash -- why else spend so much on campaign contributions? -- this essentially means that virtually everyone who achieves an important office (and is not spending only their own money) is subject to blackmail. In other words, the process for electing federal officials is intrinsically, by its nature, corrupt. 

* Laws are made by Congress; rules and regulations are made by agencies.  (Our constitutional law professor President knows the difference.) NSA and the intelligence agencies made up their own rules, repeatedly breaking the laws of the land and violating the US' supreme law, the Constitution. Congress, whose role is to provide oversight, was not informed of many NSA programs.  That makes oversight impossible. Even members of Congress' two Intelligence Committees, who receive more, classified briefings on intelligence programs than other Congressmembers, were uninformed about some NSA programs. So laws could not govern NSA processes since the lawmakers were kept in the dark about them.

* With respect to surveillance of foreign cellphones, NSA has just claimed what it does is legal under a Presidential Order.  Presidential Orders require no assent by Congress or the courts, and are often secret.  There are no checks and balances for Presidential Orders. 

* The NSA repeatedly lied to the one entity providing any oversight at all: the Foreign Intelligence and Surveillance Court (FISA).  FISA's chief judge John D. Bates issued an 85 page (secret) ruling, which was released in August in response to a lawsuit by the Electronic Frontier Foundation, and reported on by Savage and Shane at the NY Times. They note some of the Judge's statements, including the fact that FISA had ruled that NSA violated the Fourth Amendment...but this ruling itself was classified:

“The court is troubled that the government’s revelations regarding N.S.A.’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” Judge Bates wrote.
One of the examples was redacted in the ruling. Another involved a separate N.S.A. program that keeps logs of all domestic phone calls, which the court approved in 2006 and which came to light in June as a result of leaks by Mr. Snowden.
In March 2009, a footnote said, the surveillance court learned that N.S.A. analysts were using the phone log database in ways that went beyond what the judges believed to be the practice because of a “repeated inaccurate statements” in government filings to the court.
“Contrary to the government’s repeated assurances, N.S.A. had been routinely running queries of the metadata using querying terms that did not meet the standard for querying,” Judge Bates recounted. He cited a 2009 ruling that concluded that the requirement had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall ... regime has never functioned effectively.”

UPDATE: The Atlantic weighs in on how Obama Misled on NSA Surveillance.  Marcy Wheeler also does a great job of dissecting Obama's comments to Chris Matthews.

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